Legal Studies Chapter 43: Employment Discrimination

Describe At-Will Employment:

An employer can fire an employee for any reason

Any employee who is not under a contract or a collective bargaining agreement

May quit or be fired at any time

Can't be fired for an illegal reason

List the Federal Laws governing employers

Civil Rights Act of 1964 (CRA) Title VII:

Pregnancy discrimination Act of 1987 (PDA)

Age Discrimination In Employment Act of 1967 ADEA

Americans with disabilities Act (ADA):

Equal Pay Act of 1963 (EPA):

Briefly describe the Civil Rights Act of 1964 (CRA) Title VII:

Protects employees against discrimination based on race, color, religion, national origin, and sex; also prohibits harassment based on the same protected categories

Briefly describe the Pregnancy discrimination Act of 1987 (PDA)

Amended Title VII of the CRA to expand the definition of sex discrimination to include discrimination based on pregnancy

Describe the Age Discrimination In Employment Act of 1967 (ADEA):

Prohibits employers from refusing to hire, discharging, or discriminating in terms and conditions of employment on the basis of an employee's or applicant's being age 40 or older

Prohibits mandatory retirements (for non-manager workers)

Must have 20 or more employees (diff. than T7)

Burden of Proof is very low: just need an inference of discrimination, don't need a full prima facie

EEOC administers but can also have a private cause of action

Define the Americans with disabilities Act (ADA):

Prohibits discrimination against employees and job applicant with disabilities:

Define Equal Pay Act of 1963 (EPA):

Describe the Paycheck Fairness Act

Prohibits an employer from paying workers of one gender less than the wages paid to employees of opposite gender for work that requires equal skill, effort and responsibility. MEN VS. WOMEN. not men v. men or women v. women in pay discrimination

Paycheck Fairness Act: Close Loopholes of EPA. Help women earn equal pay fo equal work

Define the Civil Rights Act (CRA) of 1964: Title VII:

(Slides)

Who does it apply to?

Federal law that Protects employees against discrimination based on race, color, religion, national origin, and sex; also prohibits harassment based on the same protected categories

Applies to: Employers dealing in interstate commerce, labor unions, labor hiring halls, employment agencies, state and local governments, and MOST federal jobs

Define Title VII:

Prohibits employers from hiring, firing, or otherwise discriminating in terms and conditions of employment and prohibits segregating employees in a manner that would affect their employment opportunities on the basis of their race, color, religion, sex, or national origin.

Who does Title VII apply to?

Applies to employers who have 15 or more employees for 20 consecutive weeks within one year and who are engaged in a business that affects commerce.

What are the two ways to prove discrimination under Title VII

Disparate Treatment (Intentional):

Disparate Impact (Unintentional):

Define Disparate Treatment (Intentional):

Intentional discrimination in which an employee is hired, fired, denied a promotion, or the like, on the basis of membership in a protected class

Proving Disparate Treatment is a three-step process:

list the 3 step process for proving Proving Disparate Treatment

i. P (the employee) must demonstrate a prima Facie Case of discrimination

ii. D (Employer) must articulate a legitimate, nondiscriminatory business reason for the action

iii. P must show that the reason given by the D is mere pretext.

Define prima Facie

"At first view"

Means that the evidence is sufficient to raise a presumption that discrimination occurred.

Person is a member of a protected class

Person applied and was qualified for a job

Person was rejected by an employer

Employer continued to seek applicants to fill the job person was turned down for

Define Disparate Impact (Unintentional):

Form of discrimination that arises when an employer's policy or practice appears to apply to everyone equally but it actual effect is that it disproportionately limits employment opportunities for a protected class.

List the steps to prove Disparate Impact

Is it easier to easier to establish Prima Facie Case in Disparate Impact?

P must establish statistically that a rule restricts employment for those in a protected class

D must articulate why the policy or practive is a "business necessity"

P must show that the alleged "business necessity" is a mere pretext.

Yes, Prima Facie case in this instance it is a bit easier to prove: Here a facially neutral policy impacts employment decision

Employee must show that the employers hiring, screening, or employment requirements have a discriminatory impact on the available job pool

Key here is statistics

Define Damages under Title VII

Two years of back pay

compensatory damages

punitive damages (limited in some cases)

attorney fees

court costs

court orders (including reinstatement)

remedial seniority.

If Jury finds in favor of the employer, P receives nothing.

Define Sexual harassment

Unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of a sexual nature that makes submission a condition of employment or a factor in employment decisions or that creates an intimidating, hostile, or offensive work environment.

What are the two types of Sexual Harassment

Hostile environment

Quid Pro Quo

Define Hostile Environment

environment is so sexually permeated reasonable person find it offense and/or hostile that alters the work environment

EX:

Sexual jokes, innuendos, explicit emails,

etc.

Can be one incident or many

Harder to define and prove

The work environment must be permeated with such things as sexual joking, nude pictures, must be severe and persuasive, and against a gender.

Additionally, it must affect the working conditions and be so intolerable that a reasonable person would not be able to tolerate the environment

telling someone they look pretty or handsome, an occasional joke overheard - does NOT constitute Hostile Work Environment

What must be demonstrated in order to find Hostile Environment

P suffered intentional, unwanted discrimination because of his sex

The harassment was sever OR pervasive

The harassment negatively affected the terms, conditions, of his work environment

Management knew about the harassment, or should have known, and did nothing to stop it.

Define quid pro quo

When a supervisor makes a sexual demand on someone of the opposite sex and this demand is reasonable perceived as a term or condition of employment.

Employee is required to do a sexual activity in order to gain some type of favorable employment decision, hiring, promotion, etc.

Easiest to spot, can be hard to prove if it's a "he said she said" kind of thing

List 4 steps to prevent sexual harassment

(i) Implement a policy against it

(ii) Require supervisor training

(iii) Provide mechanism for receiving complaints

(iv) Create a method for conducting prompt and thorough investigation.

Describe Harassment in Cyberspace

Employers have a duty to remedy online harassment when they have notice that employees are engaged in a pattern of retaliatory

Describe Same-sex harassment

Actionable under VII

Describe Harassment by non-employees under title VII

Employers can be held liable if they know that a customer repeatedly harasses an employee and does nothing to remedy the situation

describe Harassment of other protected classes under Title VII:

Hostile Work Environment cases have been used in cases of discrimination based on religion and race

Define the Pregnancy discrimination Act of 1987 (PDA)

Amended Title VII of the CRA to expand the definition of sex discrimination to include discrimination based on pregnancy, childbirth, or related medical conditions

EX of illegal question firms can't ask:

1. How many children fo you have?

2. Are you pregnant?

What are some defenses to claims under title VII

Bona Fide Occupational Qualification (BFOQ)

Merit Defense

Bona Fide Seniority System Defense

Business Necessity

Shift Differentials

Define Bona Fide Occupational Qualification (BFOQ)

describe Business Necessity:

Allows an employer to discriminate in hiring on the basis of sex, religion, or national origin (NOT race or color) when doing so necessary for the performance of the job.

To succeed - must show discrimination goes to the essence of what the employer does

Ex.- Female model wearing model's clothes

Ex.- Men only to model men's cologne

BN:

the qualification that the person is complaining of is necessary to the job (Impact Cases)

NEED - Job Relatedness and Consistent with the needs of the business

EX:

A person being able to carry 175 pounds down a flight of stairs for firefighters

Define Merit Defense

Usually raised when hiring or promotion decisions are partially based on test scored.

(i) Validated Tests:

1. Criterion-related Validity

2. Content validity

3. Construct validity

Define Bona Fide Seniority System Defense

Define Shift Differentials

Employees are given preferential treatment based on their length of service

(i) Must:

1. Apply equally to all persons

2. Follows industry practices

3. Did not have its genesis in discrimination

4. Free of any illegal discriminatory purpose

SD: Ex: Night vs. Day shifts paying different.

List remedies under title VII

Damages are capped under Title VII

Can receive anywhere from $50-$300 K in compensatory and punitive - (depends on size)

HOWEVER, Also calculate in their: back pay, raises, bonuses, state claims, more than one type of discrimination, more than one federal violation, and any other tort that may be associated and can be MILLIONS of dollars by the time its all said and done -

state claims and the TORT CLAIMS

List the procedure for filing a claim under Title VII

1) file charge with EEOC (must be filed within 180 days of the discriminatory act)

2) EEOC investigates (if EEOC finds a reasonable cause, it attempts to eliminate the discriminatory practice through conciliation. If unsuccessful, the EEOC may file suit against the alleged discriminator in federal district court)

3) Right to sue letter: If the EEOC decides not to sue, it notifies the plaintiff of his or her right to file an action and issues the plaintiff a right-to-sue letter, which is not intended to be anything other than a statement that the plaintiff has followed the proper initial procedures and therefore may file a lawsuit

Reporting Procedures Depends

business size

business type

past violations

Describe the Age Discrimination In Employment Act of 1967 ADEA:

Federal Law Prohibits employers from refusing to hire, discharging, or discriminating in terms and conditions of employment on the basis of an employee's or applicant's being age 40 or older

Describe Proving Age Discrimination Under ADEA:

To prove a Prima Facie Case of age discrimination,

P must show:

(1) P belongs to the statutorily protected class (40 or older)

(2) P was qualified for the position held

(3) Was terminated under circumstances giving rise to an inference of discrimination

List the Prima Facie Case for ADEA

Member of protected age group

Was qualified for position that was fired from (or not hired for)

Was discharged or not hired due to an inference of discrimination (person is under 40)

Q becomes - when is firing really a rational business decision & not discrimination?

BURDENS ARE DIFFERENT!!

List a defense to ADEA

i) BFOQ defense.

define the Americans with disabilities Act (ADA):

Federal Law that Prohibits discrimination against employees and job applicant with disabilities:

list the Enforcement Procedures Under ADA:

(a) P must show:

(i) Has a disability

(ii) Was otherwise qualified for the job

(iii) Was excluded from the job solely because of that disability.

list the remedies for Violations fo ADA:

Similar to those under title VII

Describe the equal Pay act (EPA)

female vs. male only

Don't have to go to EEOC

Job content is important

2009 legislation

Paycheck Fairness Act

Goal: close loopholes

TF: employers may use Social Media in making employment decisions but, care must be taken to not run afoul of state and federal employment laws and regulations.

T

Define Protected Class

a class of persons that cannot be discriminated against because of race, color, religion, national origin, gender or age and disability

In Disparate TreatmentDescribe the "The Shifting Burdens"

If a prima facie case is made, plaintiff has met their burden of proof to go to court

Burden of proof then shifts to the employer to give a legally acceptable reason as to why the employee was not hired

If employer meets their burden, the burden of persuasion moves back to employee to show that the proffered reason was a pretext and that the real reason was in fact discriminatory

Describe Religion under 1st amendment and title VII

1st Amendment Rights - also Title VII

Must Reasonably Accommodate a person's religious beliefs

List 2 other defense to discrimination

Quality and Quantity -for work that deals in units

Shift Differentials

Describe Griggs vs. Duke Power

More detail

Janitor job that you needed a HS diploma for.

Disparate Impact

The Supreme Court ruled that the company's employment requirements did not pertain to applicants' ability to perform the job, and so were unintentionally discriminating against black employees.

The judgment famously wrote that "Congress has now provided that tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox.

As such, Title VII of the Civil Rights Act prohibits employment tests (when used as a decisive factor in employment decisions) that are not a "reasonable measure of job performance," regardless of the absence of actual intent to discriminate. Since the aptitude tests involved, and the high school diploma requirement, were broad-based and not directly related to the jobs performed, Duke Power's employee transfer procedure was found by the Court to be in violation of the Act.

Describe McDonnell Douglas vs. Green

More Detail

Established the Framework for burden of proof in disparate Treatment Cases

Green was a mechanic that worked fo McDonnell Douglas. He was laid off and then participated in a protest for Civil rights against McDonnell Douglas.

Green later applied for a vacant position there and was denied because he participated in the protest.

Green subsequently filed a complaint with the Equal Employment Opportunity Commission (EEOC),

He then sued in U.S. District Court on racial discrimination and for denying him for participating the the protest

though the EEOC had not made a finding on the latter

The case was argued in front of the U.S District Court, the U.S. Court of Appeals, and in front of the Supreme Court

The Supreme Court's decision was awarded to Green in a 9-0 vote.

Describe Faragher v. city of Boca Raton

(Sexual Harassment)

This case was centered around a lifeguard position.

Established vicariously Liability for employers for actions caused by their supervisors to employees.

United States Supreme Court identified the circumstances under which an employer may be held liable under Title VII for the acts of a supervisory employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination.

The court held that "an employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of a plaintiff victim.

Describe Onscale v. Sundower

(Sexual Harassment)

Established That same sex harassment may state a claim under Title VII.

The case arose out of a suit for sex discrimination by a male oil-rig worker, who claimed that he was repeatedly subjected to sexual harassment by his male co-workers with the employer being aware of it

this case set the precedent for analyzing same-sex harassment and sexual harassment

discuss the Title VII notes on Gender for clarity:

Does "Gender Discrimination still exist? Give examples

"Gender" is not defined in Title VII, however, the Courts have interpreted "Sex" to mean "Gender"

Does "Gender" discrimination still exist? Sure it does - thus:

Affirmative Action Plans

Equal Pay Act

Pregnancy Discrimination Act

GENDER DOES NOT PROTECT THOSE INDIVIDUALS WHO ARE LESBIAN, GAY, TRANSEXUAL, or BISEXUAL

Discrimination may occur against an individual not solely because of his or her gender, but that fact coupled with another may be its cause.

Can be anything from having children, taking care of elderly parents, or something more blatant like religion, race, national origin

Describe Price Waterhouse (Title VII notes on Gender for clarity)

blatant discrimination - 'she's too manly to be promoted - needs to be more feminine both in dress and in wearing makeup' - definite discriminatory remarks

May be hard to prove - but if it permeates the workplace & the attitude is there, once in depositions - Plaintiff's attorney can ask just about anything - including conversations as in Price Waterhouse

landmark decision by the United States Supreme Court on the issues of prescriptive sex discrimination and employer liability for sex discrimination.

The employee, Ann Hopkins, sued her former employer, the accounting firm Price Waterhouse.

She argued that the firm denied her partnership because she didn't fit the partners' idea of what a female employee should look like and act like. The employer failed to prove that it would have denied her partnership anyway, and the Court held that constituted sex discrimination under Title VII

The significance of the Supreme Court's ruling was twofold.

First, it established that gender stereotyping is actionable as sex discrimination.

Second, it established the mixed-motive framework that enables employees to prove discrimination when other, lawful reasons for the adverse employment action exist alongside discriminatory motivations or reasons

Many company's need dress codes by law or for safety purposes- i.e. restaurants, police, fire

What about those businesses that don't have a "safety need" for a grooming code?

What about codes that require one gender to dress differently? i.e. - women to wear dresses and men to wear ties?

(Title VII notes on Gender for clarity)

Courts have given leeway to employers in this area - looks at reasonableness

Gender based customer preference - is not OK unless there is a legitimate need under a BFOQ defense - i.e. women nurse in a rape unit

Just because that gender is "preferred" by male clientele (or female) doesn't necessarily make it a BFOQ - i.e. Hooters example in the book

Since "gender" under Title VII does not cover pregnancy - Congress enacted ______________

Pregnancy Discrimination Act

Can't use pregnancy, childbirth, related medical type procedures to influence how a decision is made in employment

Describe Affinity Orientation

to the intimate relationship that an individual may have with another individual of the same gender, or an individual's desire to become the opposite gender, either temporarily or permanently.

Whom one is attracted to for personal and intimate relationships - includes, heterosexuals, homosexuals, transsexuals

NOT Title VII protected

Some states have anti-discrimination statutes based on sexual orientation - OK does not at this time

1. The ____________________ Act requires equal pay for employees of both sexes if the job has the same requirements and requires the same skills.

Equal Pay

2. Discrimination under Title VII is prohibited whether it is evidenced by disparate _______________ or disparate treatment

impact

3. The tort of _____________ imposes liability on the employer for the action of their employee if the employee is working within the scope of their employment.

Vicarious liability

4. The Immigration Reform and Control Act requires that employee provide proof availability to work based on filling out a(n) _____

I-9 form

Public Policy exceptions to the at-will rule include this: _______________ which allows an individual who reports their employer for misconduct to be protected from retaliation.

Whistleblower

______________________ occurs when an employment decision based on a neutral criterion (e.g. a facially neutral policy) has the effect of discriminating on the basis of race, color, national origin, sex, or religion.

Disparate Impact

_______________ is a defense theory available to an employer confronted with a disparate impact claim.

Business Necessity

The term "BFOQ" is an acronym that means____________________________ and is a defense to disparate treatment claims.

Bona Fide Occupational Qualification

The Latin term ________________ when used in the context of sexual harassment, means, "this for that".

QUID PRO QUO

The term "__________________" is used in reference to discrimination against white males in favor of women or minority group members and is growing in claims today

reverse discrimination

__________________ is the term used for an individual who is in control of their own scope of work and has the rights to make their own job determinations.

Independent Contractor

Workers compensation laws protect employees who are working

Within the scope of their employment

16. Minimum wage, rights of children to work, rights of individuals to receive overtime are all found in which law ?

Fair Labor Standards Act.

17. When an employee is discharged for an illegal reason - a case of ______________ occurs.

wrongful discharge

18. Title VII refers to _________________ or groups of individuals who are covered under the act.

protected classes

________________ occurs when an employment decision is not based on neutral criteria but rather blatant discrimination or provable discrimination.

Disparate Treatment

The _______________ is on the employee once the employer has rebutted the employees original claims of discrimination

burden of proof